President Trump’s dream of closing the Department of Education is impossible without Congress, but that doesn’t mean he has no power to shrink or weaken the federal agency.
While some functions of the department are mandated by law, reports indicate the White House will seek to shift essential programs while drastically reducing department staff.
How far Trump can go will likely ultimately be decided by the courts, as his administration has shown an eagerness to barrel ahead with decisions that ultimately face legal challenge.
“I don’t know exactly how small it can be made in terms of numbers,” said Neal McCluskey, director for the Center for Educational Freedom at the Cato Institute. “How many people does it actually require to run each and every program that the department has?”
In the past month, the agency has already undergone big changes, with dozens of employees fired or placed on administrative leave.
On Monday, the department was offering some employees $25,000 to quit their job with an explicit threat of further layoffs coming. It is not clear how many staffers took the offer.
Along with layoffs, millions of dollars in Education contracts have been terminated after staffers with the Department of Government Efficiency gained access to its servers.
Linda McMahon, who was confirmed as the department’s secretary Monday, sent out a memo that same day telling staffers of their “final mission.”
“This restoration will profoundly impact staff, budgets, and agency operations here at the Department. In coming months, we will partner with Congress and other federal agencies to determine the best path forward to fulfill the expectations of the President and the American people. We will eliminate unnecessary bureaucracy so that our colleges, K-12 schools, students, and teachers can innovate and thrive,” McMahon said.
In her confirmation hearing, McMahon made clear she fully supports Trump’s goal of dismantling the department but also acknowledged it could not be eliminated without legislative action and that certain of its responsibilities are mandated by Congress.
Others are far more vulnerable.
Jonathan Butcher, the Will Skillman senior research fellow in education policy at the Heritage Foundation, said “specific programs” such as ones based on ethnicity could be eliminated, using as an example the Alaska Native Education program.
“They’re relatively small programs compared to the bigger parts like Title I, but nevertheless, there is a list of them that could be removed,” Butcher said.
Administrative moves are likely coming soon, as Trump has previously said he would like to go after the department via executive action, but The Wall Street Journal reported he was advised not to do so until McMahon was confirmed.
Much of the opposition from education groups to her was based on her support of Trump’s plans to get rid of the department.
“Linda McMahon has pledged to dismantle public education and take away resources students need by hollowing out the Department of Education, destroying programs that support students with disabilities, making higher education less accessible, and gutting civil rights protections,” said Beck Pringle, president of the National Education Associations, the largest teachers union in the country.
The programs mandated by Congress that Trump could not get rid of with a pen include the Office of Civil Rights, tribal education, military education and others. But even among those mandated programs, the administration has some power to fire staff.
The unknown is how many employees the administration would be allowed to get rid of before it interfered with required responsibilities. The Department of Education is already the smallest Cabinet-level federal agency, with around 4,500 employees.
“I think that the president also has the authority to hire and fire people within the confines of the budget. So, he can’t hire a whole bunch of people he doesn’t have money for, but I think he can fire people even if he has money to pay them. I think, conceptually, the limit is, if he fires so many people that he can’t do the jobs that Congress has given him, then he will have violated the Constitution,” McCluskey said.
And where that limit lies may be determined by the courts.
Lawsuits have already been filed against the administration over the firings and canceled Education contracts, and Trump’s efforts to reduce the federal workforce elsewhere have gotten some judicial pushback.
“I think it would end up being a court that would have to decide if” the administration cut too much from the agency, McCluskey said.
“Maybe it is because of a state or a school, or some intended beneficiary says, ‘I’m being harmed by this,’ and then they would sue, and it would take a judge then to decide, ‘Well, do they have enough people in order that they’re meeting or the president is meeting his constitutional obligations, or has he cut too far to meet those directions’ and that could end up being something that’s kind of program by program,” he added.
Trump’s ultimate goal of wiping the department from the books will require getting a bill to do so through Congress. But even if he could get all Republicans on board, which would be a difficult task, it is very unlikely the Senate could overcome a filibuster to abolish the agency.
Stand-alone GOP bills to do away with the department have been introduced in both chambers in the past, but have seen little movement.
Butcher said the “conversation should happen right away” about what members can do in concert with the White House.
“I think that’s a part of what lawmakers need to be coming up with now as they draft proposals for closing the agency,” he added.
